The Utah Supreme Court last month
declared a portion of the state’s pre-litigation medical malpractice review
panel process under the Utah Health Care Malpractice Act unconstitutional
because it violates the separation of powers doctrine.

The Utah Legislature passed the Health Care Malpractice Act in 1976 to curb the perceived cost increases in malpractice insurance in Utah. The legislature added a pre-litigation medical review panel to the Act’s requirements in 1985.

Prelitigation review panels in alleged
medical liability cases against healthcare providers were required under Title
78B, Chapter 3, Part 4, of the Utah Code Annotated. The administrative rules
applicable to prelitigation review panels are found in Section R156-78B of the
Utah Administrative Code.

The prelitigation panel review process is
overseen by the Utah Division of Occupational & Professional Licensing
(DOPL) and required the plaintiff initiating a medical professional liability
action to file a request for panel review within 60 days after filing a notice
of intent to commence action. This request is mailed to all healthcare
providers named in the notice and request. Filing a request for a
pre-litigation panel review also starts tolling the statute of limitations. A
three-member panel comprised of an attorney who serves as chairperson, a lay
member who is not a healthcare provider, hospital employee or attorney and a
licensed healthcare provider practicing in the specialty in which the
respondent healthcare provider practices are tasked with reviewing the merits
of the case.

A meritorious finding by the panel
results in a certificate of compliance with the prelitigation requirements, and
the claim may be filed with the courts. If a claim was determined to be
non-meritorious, prior to 2010, the claimant was required to first obtain an
expert affidavit in support of the claim before filing a lawsuit.

In 2010, the Utah Legislature amended the
prelitigation panel review process so that the DOPL could reject the
plaintiff’s expert affidavit and block the lawsuit from moving forward. This is
where the Utah Supreme Court found constitutional flaw.

The Court’s Ruling

In the case of Vega v. Jordan Valley
Medical Center, Yolanda Vega attempted to file a medical professional liability
lawsuit against Jordan Valley Medical Center on behalf of her deceased husband.
The DOPL determined her claim lacked merit. She then acquired an expert
affidavit in support of the claim, which the Division determined was
inadequate. Vega filed her lawsuit anyway, and it was dismissed for lack of
approval by the DOPL. Vega appealed the dismissal, arguing the Utah Health Care
Act’s prelitigation requirements violated the separation of powers doctrine of
the Utah Constitution. The Utah Supreme Court agreed with Vega’s argument.

“We conclude that Utah Code section
78B3-412(1)(b), which requires a certificate of compliance from DOPL in order
for a plaintiff, like Ms. Vega, to initiate a malpractice action against a
healthcare provider, is unconstitutional,” the Justices wrote in their opinion.
“Accordingly, those sections of the Malpractice Act that require a plaintiff to
obtain a certificate of compliance prior to filing a lawsuit in the district
court must be stricken from the Act. Additionally, we declare the language in
Utah Code section 78B-3-423(7), which mandates a dismissal of any malpractice
action filed without a certificate of compliance, to be unconstitutional.
Because section 423 cannot standalone or serve a purpose without section
423(7), we find the entirety of section 423 and all language throughout the act
that refers to affidavits of merit to be unconstitutional.”

The reasoning behind the decision rests
on two distinct constitutional provisions: the separation of powers ensconced
in Article V of the Utah Constitution and the judicial power vested in Article
VII. Under both articles, the DOPL was determined to be infringing on the purview
of the judiciary.

“While Article V regulates and guides the
apportionment of authority and function between the branches of government, the
core judicial power vested in the courts by Article VIII is always retained by
the judiciary — regardless of whether the party attempting to exercise a core
judicial function belongs to another that the “explicit vesting of jurisdiction
in the various courts of the state is an implicit prohibition against any
attempt to vest such jurisdiction elsewhere,” the Justices wrote.
“Additionally, the ‘[c]ore functions or powers of the various branches of
government are clearly nondelegable under the Utah Constitution.’ Notably, the core judicial function of courts
includes ‘the power to hear and determine controversies between adverse parties
and questions in litigation.’”

Ultimately, the Utah Supreme Court
determined that “allowing DOPL to exercise the core judicial function of
ordering the final disposition of claims, like those brought by Ms. Vega,
without judicial review” interferes with that which is the sole purview of the
courts. Thusly, the high court struck down the 2010 portion of the law that
outlined the process of a healthcare provider offering an affidavit that is
then sent to DOPL. The original DOPL pre-litigation hearing process remains
intact.